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TALLAHASSEE, Fla. (AP) — A two-year legal battle over the fate of Florida's largest private school voucher program on Tuesday spilled into an appeals court, where a panel of judges sounded skeptical about whether the lawsuit should go forward.
Supporters of the program have mounted an advertising and public relations campaign in an effort to get the state's teachers union and others to drop the lawsuit, but it may be three judges appointed by the last two governors who finally end the tug-of-war over the program that serves more than 78,000 students.
The judges with the 1st District Court of Appeal held a nearly hourlong hearing on whether the lawsuit filed by the Florida Education Association and others back in 2014 should be tossed out because the union lacks the legal right, or standing, to challenge it. A circuit judge last year rejected the lawsuit and said it was "speculative" to argue Florida's public schools are receiving less money because of the vouchers used in private schools.
The key argument is that the Florida Tax Credit Scholarship Program — as the program is officially called — doesn't involve any actual state spending, so taxpayers can't challenge it. Instead, legislators allow companies that donate money for the vouchers to receive a credit on taxes owed to the state. This school year, nearly 200 companies and corporations received more than $400 million in tax credits because they donated to the program.
"There can't be any serious argument that this program is not an exercise of the Legislature's taxing authority," said Lynn Hearn, an attorney representing the union.
But during the hearing, Judge Lori Rowe sharply questioned Hearn and said the tax credits were "never revenue" for the state and that even if the state had received the money there was "no evidence" that legislators would have used it for public schools.
Jay Lefkowitz, an attorney representing parents who receive the vouchers, contended that the program is funded by donations and that a tax benefit is not the same as setting aside money in the state budget for vouchers. The Florida Supreme Court back in 2006 struck down a different voucher program that helped students who had been enrolled in low-performing public schools.
"In this situation, you are the one making the expenditure and not the government," Lefkowitz said.
Florida has several voucher programs in place, but the one being challenged extends vouchers to low-income families who primarily use the help to send their children to religious schools. Most of the children who receive the vouchers are black or Hispanic.
The law creating the program was first approved in 2001 under then-Gov. Jeb Bush, but legislators two years ago approved expanding it to middle-income families starting this fall. The lawsuit filed by the union argues that the program violates the state's constitution by creating a parallel education system and by directing tax money to religious institutions.
The possible demise of the program has sparked television ads and a campaign to urge the union to "Drop the Suit." Thousands of people enrolled in the program held a rally at the Capitol in January to oppose to the lawsuit.
So far, the effort has not worked. Joanne McCall, the president of the Florida Education Association, contended on Thursday that those asking her to end the lawsuit don't want the court to decide whether the program is constitutional.
"I believe that's what all the hoopla is about," McCall said. "They don't believe they can win on the merits of the case."
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